Timmer v. City University of New York

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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MICHEAL TIMMER,

Plaintiff,

MEMORANDUM & ORDER

- against - 20-CV-02554 (PKC) (RLM)

THE CITY UNIVERSITY OF NEW YORK,

Defendant.

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PAMELA K. CHEN, United States District Judge:

In an Amended Complaint filed on December 30, 2020, Plaintiff Micheal Timmer sued his

employer, The City University of New York (“CUNY”), for race discrimination, retaliation, and

hostile work environment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et

seq., and for disability discrimination, retaliation, and hostile work environment under Section 504

of the Rehabilitation Act, 29 U.S.C. § 794. Now before the Court is Defendant’s motion to dismiss

the Amended Complaint under Federal Rule of Civil Procedure 12(b)(6). The Court grants

Defendant’s motion in part and denies it in part.

BACKGROUND

I. Factual Background

The Amended Complaint alleges the following facts, which the Court accepts as true for

purposes of this motion. See Forest Park Pictures v. Universal Television Network, Inc., 683 F.3d

424, 429 (2d Cir. 2012).1

1 Plaintiff notes that he “has had several work-related, on-the-job injuries for which he has

sought medical treatment and filed workers compensation claims.” (Amended Complaint, Dkt.

16, ¶ 22.) The disability claims in the Amended Complaint appear to involve only Plaintiff’s foot

condition, however, and in his response to Defendant’s letter seeking a pre-motion conference, he

notes that his “disability is the percentage loss of use of his left foot.” (Plaintiff’s Response, Dkt.

22, at ECF 3.)

Plaintiff, a Black man, lives in Kings County, New York. (Amended Complaint (“Am.

Compl.”), Dkt. 16, ¶¶ 10, 17.) Since 2001, he has been an employee of CUNY, which “operates

the New York City College of Technology, a four-year college . . . located at 300 Jay Street,

Brooklyn, NY 11201” (“City Tech”), and which receives Federal, State, and City funding. (Id. ¶¶

11, 13–17); see also About Us, New York City College of Technology,

https://www.citytech.cuny.edu/ (last visited August 13, 2021).

In 2007, Plaintiff was promoted to the position of Peace Officer. (Am. Compl., Dkt. 16, ¶

20.) His duties include “patrolling campus grounds, opening and closing doors, responding to

complaints and emergencies, taking information and making reports, signing in guests, and

regulating access and entrances and exits.” (Id. ¶ 21.) “Plaintiff’s duties sometimes require

standing for long periods of time . . . .” (Id. ¶ 26.) During the events described in the Amended

Complaint, Plaintiff reported to Lieutenants Efren Maldonado and Jessica Marrero, “both of whom

are Hispanic.” (Id. ¶ 30.) At times, Plaintiff also reported to Sergeant Chantel Jenkins. (Id. ¶ 31.)

Plaintiff’s ability to stand is “substantially limited” by a cyst in his left foot. (Id. ¶ 12.) In

2019, a Workers Compensation Judge determined that Plaintiff had lost 20% of the use of his left

foot. (Id. ¶ 25.) Defendant received notice of this decision. (Id.) Because Plaintiff’s duties

sometimes require standing, his left foot condition causes him “extreme pain in his left foot and

leg.” (Id. ¶ 26.) This “substantially limit[s] his ability to stand and walk.” (Id. ¶ 62.) “Sometimes,

while working, Plaintiff’s left foot would go numb with tingling . . . , causing the severe pain.”

(Id. ¶ 63.)

Plaintiff has received medical treatment for his foot, and doctors have “not[ed] that he

would sometimes need to sit to relieve some of the pain.” (Id. ¶ 64.) Doctors have prescribed

Plaintiff 800mg ibuprofen, and he has “us[ed] sleeping pills (Zolpidem) to sleep during the day”

when he worked the night shift. (Id. ¶ 65.) “[D]ue to medications he was taking,” Plaintiff

“suffered from incontinence” (id. ¶ 12), “especially during colder weather months or colder

conditions at work” (id. ¶ 84). Despite his injuries and medications, Plaintiff has remained

qualified to perform his job “and remains a well-liked and respected employee.” (Id. ¶¶ 27–29.)

A. Plaintiff’s Past Workplace Discrimination Complaints

In 2011, Plaintiff filed a complaint against another Lieutenant, Lieutenant Lionel Presume,

“for gender discrimination in favor[ing] female sergeants over male sergeants,” and for

“harassment and bullying of Plaintiff.” (Id. ¶ 33–34.) In 2013, Plaintiff “documented to his union

agent . . . that he felt as though [Presume’s] gender bias, harassment, and bullying had prevented

Plaintiff from receiving a promotion to sergeant sooner.” (Id. ¶ 35.)

In August 2015, Maldonado announced during a roll call meeting that all chairs at Peace

Officer posts were being removed. (Id. ¶ 36.) Plaintiff “immediately stated” that this was

retaliation for his request “to be relieved from duty [approximately a month before] due to

experiencing severe pain in his right hand and arm” and his “complaining about Defendant’s

failures to relieve him from duty.” (Id.)

The next day, Plaintiff complained to Defendant’s “Diversity Officer” “about the hostile

work environment and retaliation he was experiencing from [] Maldonado and [] Presume.” (Id.

¶ 37.) “Shortly after this complaint,” Maldonado “called Plaintiff into his office and disciplined

Plaintiff through a counseling letter.” (Id. ¶ 38.) Maldonado also questioned Plaintiff about his

“lateness to work” and “threatened Plaintiff that if he did not give the reason behind his lateness,

he would not receive a leave of absence in the future.” (Id. ¶¶ 39–40.)

In October 2015, Plaintiff submitted a complaint regarding the August 2015 incidents to

his union officials. (Id. ¶ 41.) The complaint “detail[ed] the hostile work environment and

retaliation perpetrated by [] Maldonado and Presume.” (Id.)

B. Plaintiff’s Denial of Vacation and His Subsequent Complaint

In December 2018, Maldonado denied Plaintiff’s request for approval of a vacation day.

(Id. ¶ 45.) Plaintiff resubmitted the request to Marrero, who “communicated with” Maldonado

and “likewise denied Plaintiff’s request.” (Id. ¶¶ 45–47.) Marrero told Plaintiff the request was

denied because Maldonado was on vacation. (Id. ¶ 47.)

A Hispanic employee, Jordan Solar, who had just been hired, “was given approval for

vacation instead of Plaintiff.” (Id. ¶¶ 49, 52.) “Solar, a Campus Security Assistant [], performed

some of the same duties as Plaintiff.” (Id. ¶ 50.) Plaintiff heard Solar say that Maldonado had

approved his vacation request “even though it was during the same period requested by Plaintiff.”

(Id. ¶ 51.) “At roll call . . . on January 19, 2019, Plaintiff openly verbally complained about

discriminatory conduct that he had been experiencing, i.e. that [] Maldonado and [] Marrero denied

his vacation requests in favor of other Hispanic officers because of Plaintiff’s race.” (Id. ¶ 79.)

A deadline of January 19, 2019 was set for submitting vacation requests. (Id. ¶ 53.) A

less-senior Campus Peace Officer, “Maxil,” who is also Hispanic, submitted a request for vacation

after the deadline. (Id. ¶¶ 54, 56.) The request “was originally denied,” but “Maxil resubmitted

the request to [] Marrero and it was subsequently approved after the January 19 deadline.” (Id. ¶

54.) “[W]hile [] Marrero told Plaintiff that she had to discuss Plaintiff’s request for vacation with

[] Maldonado prior to deciding on whether to grant or deny the request, [] Marrero did not

communicate with [] Maldonado in granting Maxil’s request.” (Id. ¶ 55.)

C. Plaintiff’s Denial of Accommodations and His Subsequent Complaints

“On or about January 17, 2019, while Plaintiff was at his post, [] Maldonado approached

Plaintiff and asked why he was sitting.” (Id. ¶ 71.) “Plaintiff reminded [] Maldonado of his [foot

condition] and requested . . . that he be permitted to use a chair throughout the day [to] sit down

intermittently.” (Id. ¶ 72.) Although “Plaintiff previously worked the same exact position on the

night shift and had been permitted to use a chair by other supervisors” (id. ¶ 74), Maldonado denied

Plaintiff’s request (id. ¶ 76).

At the January 19, 2019 roll call, “Plaintiff openly verbally complained about

discriminatory conduct that he had been experiencing, i.e. that [] Maldonado and [] Marrero denied

his vacation requests in favor of other Hispanic officers because of Plaintiff’s race” and that

Maldonado “had been harassing him by denying [his] request for accommodation and removing

the chair he needed at his post.” (Id. ¶ 79.) “Marrero approached Plaintiff and asked if he wanted

to submit a written statement of his complaint . . . .” (Id. ¶ 80.) “Plaintiff agreed and submitted a

written statement” to Defendant’s2 Director of Public Safety. (Id.)

On January 30, 2019, Plaintiff called dispatch for two breaks, both of which were approved.

(Id. ¶ 81.) Although “Plaintiff was entitled to these two breaks” (id.), “[a]fter his second break, []

Jenkins called Plaintiff and threatened that if he took another break, he would be written up” (id.

¶ 82). Either Maldonado or Marrero instructed Jenkins to make the call. (Id. ¶ 83.)

Plaintiff, who suffers from incontinence, contacted Defendant’s Human Resources (“HR”)

Director and asked for another break, explaining that he needed to use the bathroom immediately

or he was “going to soil [him]self.” (Id. ¶¶ 86–90.) Plaintiff was not granted permission to use

the bathroom and “ended up soiling himself at his post.” (Id. ¶ 91.) Plaintiff contacted dispatch

and explained what had happened, then, “[h]umiliated and embarrassed,” he went on break for a

meal and to clean himself. (Id. ¶¶ 92–93.)

2 Although the Amended Complaint refers to “Defendant” CUNY’s Director of Public

Safety and Human Resources Director, it is unclear whether these officials worked in CUNY’s

central office or at City Tech.

D. Plaintiff’s Disciplinary Proceedings

When Plaintiff returned from his break on January 30, 2019, Maldonado called him and

told him to report to “the office.” (Id. ¶ 94.) Maldonado and the HR Director gave Plaintiff a

letter telling him he was suspended for 30 days “pending investigation and subject to termination.”

(Id. ¶ 96.)

In March 2019, “Defendant proffered . . . charges against Plaintiff, claiming he exposed

himself and urinat[ed] at his post.” (Id. ¶ 100.) These charges “were based on deduction from

statements made by non-eyewitnesses.” (Id. ¶ 101.) “Plaintiff never exposed himself at any time

while on duty.” (Id.) Defendant ultimately required Plaintiff to attend a disciplinary hearing

before an independent arbitrator, after which Plaintiff was permitted to return to work. (Id. ¶¶

104–05.)

II. Procedural Background

On June 8, 2020, Plaintiff sued Defendant for claims related to the allegations in the

Amended Complaint. (See Original Complaint, Dkt. 1.) The Court held a pre-motion conference

on November 17, 2020, at which Plaintiff agreed to dismiss several of his claims as barred by

sovereign immunity. (See 11/17/2020 Minute Entry.) On December 30, 2020, Plaintiff filed an

Amended Complaint alleging race discrimination, retaliation, and hostile work environment under

Title VII, and for disability discrimination, retaliation, and hostile work environment under Section

504 of the Rehabilitation Act. (See Am. Compl., Dkt. 16.)

On January 27, 2021, Defendant filed a letter requesting a pre-motion conference to move

to dismiss the Amended Complaint under Federal Rule of Civil Procedure 12(b)(6). (See

(Defendant’s Motion to Dismiss (“Def.’s Mot.”), Dkt. 17.) Plaintiff filed a response to the letter.

(See Dkt. 17.) The Court construed the letter as a motion to dismiss and ordered supplemental

briefing. (See 2/18/2021 Docket Order.) Defendant filed a reply to Plaintiff’s response letter

(Defendant’s Reply (“Def.’s Reply”), Dkt. 21), and Plaintiff filed a response to Defendant’s reply

(see Plaintiff’s Response (“Pl.’s Resp.”), Dkt. 22).

LEGAL STANDARD

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), “a

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 556). “The plausibility standard

is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a

defendant has acted unlawfully.” Id. (citation omitted).

Determining whether a complaint states a plausible claim for relief is “a context-specific

task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at

679 (citation omitted). “In addressing the sufficiency of a complaint, [the Court] accept[s] as true

all factual allegations and draw[s] from them all reasonable inferences; but [the Court is] not

required to credit conclusory allegations or legal conclusions couched as factual

allegations.” Rothstein v. UBS AG, 708 F.3d 82, 94 (2d Cir. 2013).

DISCUSSION

I. Title VII Discrimination

Plaintiff alleges Defendant discriminated against him based on race in violation of Title

VII. Defendant moves to dismiss Plaintiff’s Title VII discrimination claim on the grounds that he

fails to identify an adverse employment action or allege facts that give rise to a plausible inference

of discrimination.

A. Legal Standard

“Title VII makes it unlawful for an employer ‘to fail or refuse to hire or to discharge any

individual, or otherwise to discriminate against any individual with respect to his compensation,

terms, conditions, or privileges of employment, because of such individual’s race, color, religion,

sex, or national origin.’” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 85 (2d Cir. 2015)

(quoting 42 U.S.C. § 2000e–2(a)(1)). “Title VII thus requires a plaintiff asserting a discrimination

claim to allege two elements: (1) the employer discriminated against him (2) because of his race,

color, religion, sex, or national origin.” Id.

“As to the first element, an employer discriminates against a plaintiff by taking an adverse

employment action against him.” Id. “As to the second element, an action is ‘because of’ a

plaintiff’s race, color, religion, sex, or national origin where it was a ‘substantial’ or ‘motivating’

factor contributing to the employer’s decision to take the action.” Id. at 85 (quoting Price

Waterhouse v. Hopkins, 490 U.S. 228, 249 (1989) (plurality)). “Under Iqbal and Twombly, then,

in an employment discrimination case, a plaintiff must plausibly allege that (1) the employer took

adverse action against him and (2) his race, color, religion, sex, or national origin was a motivating

factor in the employment decision.” Id. at 86.3

3 Under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to survive summary

judgment a plaintiff must show that “(1) she is a member of a protected class, (2) she was qualified

for the job at issue, (3) she was subjected to an adverse employment action, and (4) the

circumstances of that adverse action give rise to an inference of discrimination based on her class

membership.” Bentley v. AutoZoners, LLC, 935 F.3d 76, 88 (2d Cir. 2019). But “a plaintiff is not

required to plead a prima facie case under McDonnell Douglas, at least as the test was originally

formulated, to defeat a motion to dismiss.” Vega, 801 F.3d at 84. “Rather, because a temporary

‘presumption’ of discriminatory motivation is created under the first prong of the McDonnell

Douglas analysis, a plaintiff need only give plausible support to a minimal inference of

discriminatory motivation.” Id. (quotations omitted).

1. Adverse Employment Action

“A plaintiff sustains an adverse employment action if he or she endures a materially

adverse change in the terms and conditions of employment.” Id. at 85 (quotations omitted). “An

adverse employment action is one which is more disruptive than a mere inconvenience or an

alteration of job responsibilities.” Id. (quotations omitted). “Examples of materially adverse

changes include termination of employment, a demotion evidenced by a decrease in wage or salary,

a less distinguished title, a material loss of benefits, significantly diminished material

responsibilities, or other indices unique to a particular situation.” Id. (quotations omitted).

Courts in this Circuit have found that suspensions without pay can be adverse employment

actions. See, e.g., Lovejoy–Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 223–24 (2d Cir.

2001) (finding a suspension without pay for one week to be an adverse employment action).4

Likewise, “[i]t is well-settled that disciplinary charges are considered adverse employment

actions . . . .” Chapman v. City of New York, No. 06-CV-3153 (ENV) (JMA), 2011 WL 1240001,

at *6 (E.D.N.Y. Mar. 30, 2011).

By contrast, “the denial of vacation time does not generally rise to the level of an adverse

employment action.” Chukwuka v. City of New York, 795 F. Supp. 2d 256, 261 (S.D.N.Y. 2011)

(citation omitted), aff’d, 513 F. App’x 34 (2d Cir. 2013). “Moreover, the denial of a single vacation

4 See also Eka v. Brookdale Hosp. Med. Ctr., 247 F. Supp. 3d 250, 264 (E.D.N.Y. 2017)

(“Plaintiff’s 2009 six-week suspension without pay . . . was a materially adverse change in the

conditions of his employment.”); St. Juste v. Metro Plus Health Plan, 8 F. Supp. 3d 287, 306

(E.D.N.Y. 2014) (finding that a suspension without pay while the employee was investigated for

fraud was an adverse employment action); Hill v. Rayboy–Brauestein, 467 F. Supp. 2d 336, 355–

56 (S.D.N.Y. 2006) (“Plaintiff’s ten-day suspension [without pay] is an adverse employment

action, as it is a material alteration of Plaintiff’s working conditions.”); Hughes v. City of

Rochester, No. 12-CV-6112, 2016 WL 4742321, at *6 (W.D.N.Y. Sept. 12, 2016) (finding, in a

Title VII disparate impact case, that an employer’s decision to place plaintiff on unpaid leave was

an adverse employment action).

request, without any indication that there was an absolute prohibition against plaintiff taking any

vacation time, is not a material adverse employment action.” Id. (quotations omitted); see also

Jackson v. Syracuse Newspapers, 574 F. App’x 36, 37 (2d Cir. 2014) (summary order) (noting that

“the denial of requested additional vacation days” did “not amount to [an] adverse employment

action[]”).

Finally, “[w]hile courts may consider the underlying conduct of an alleged failure to

accommodate, a failure to accommodate, by itself, is not sufficient for purposes of establishing an

adverse employment action.” Sosa v. New York City Dep’t of Educ., 368 F. Supp. 3d 489, 496

(E.D.N.Y. 2019) (quotations omitted); see also Shields v. NYC Health & Hosps. Corp., 489 F.

Supp. 3d 155, 164 n.4 (E.D.N.Y. 2020) (noting that “the denial of an accommodation is not itself

an adverse employment action providing a basis for a claim for discrimination”); Fox v. Costco

Wholesale Corp., 918 F.3d 65, 72 (2d Cir. 2019) (finding that the plaintiff’s “claim that he was

denied breaks to go home and take his medicine and go to the pharmacy, even if related to his

disability, [did] not rise to the level of a material adverse employment action,” because “[b]eing

unable to take a break twice is not the type of demotion, pay cut, or significantly diminished

responsibility that are the tell-tale signs of material adverse employment actions”).

2. Inference of Discrimination

In assessing a motion to dismiss a Title VII discrimination claim under Rule 12(b)(6), the

Court must consider “whether the well-pleaded factual allegations plausibly give rise to an

inference of unlawful discrimination.” Vega, 801 F.3d at 87. “In making the plausibility

determination, the court must be mindful of the ‘elusive’ nature of intentional discrimination.” Id.

(quoting Texas Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 255 n.8 (1981)). “[A]t the initial

stage of a litigation, the plaintiff’s burden is ‘minimal’—he need only plausibly allege facts that

provide ‘at least minimal support for the proposition that the employer was motivated by

discriminatory intent.’” Id. at 86–87 (quoting Littlejohn v. City of New York, 795 F.3d 297, 311

(2d Cir. 2015)).

“An inference of discrimination can arise from circumstances including, but not limited

to”: (1) “the employer’s criticism of the plaintiff’s performance in ethnically degrading terms;” (2)

“its invidious comments about others in the employee’s protected group;” (3) “the more favorable

treatment of employees not in the protected group;” or (4) “the sequence of events leading to the

[adverse action].” Littlejohn, 795 F.3d at 312 (quotations omitted). “To establish an inference of

discrimination” based on disparate treatment of similarly-situated employees, “a plaintiff must

allege that she was similarly situated in all material respects to the individuals with whom she

seeks to compare herself.” Brown v. Daikin Am. Inc., 756 F.3d 219, 230 (2d Cir. 2014) (quotations

omitted).

As noted, courts are “not required to credit conclusory allegations or legal conclusions

couched as factual allegations.” Rothstein v. UBS AG, 708 F.3d 82, 94 (2d Cir. 2013). Thus,

“[n]aked assertions of discrimination without any specific factual allegation of a causal link

between the defendants’ conduct and the plaintiff’s protected characteristic are too conclusory to

withstand a motion to dismiss.” Amaya v. Ballyshear LLC, 295 F. Supp. 3d 204, 220 (E.D.N.Y.

2018) (quotations and alterations omitted); accord Rivera-Powell v. New York City Bd. of

Elections, 470 F.3d 458, 470 (2d Cir. 2006) (affirming dismissal where the “complaint proffer[ed]

only a conclusory allegation of discrimination”).

B. Plaintiff Fails to State a Title VII Discrimination Claim

The Amended Complaint alleges that Plaintiff was (and is) qualified for his position (Am.

Compl., Dkt. 16, ¶ 115); that Defendant threatened Plaintiff, suspended him, and held disciplinary

hearings “attempting to terminate” him (id. ¶ 116); that “Defendant denied Plaintiff’s request for

[a disability] accommodation” (id. ¶ 118); and that “Defendant treated Plaintiff, a Black man,

differently due to his race in that his superiors, both of whom are Hispanic, denied [his] requested

vacation in favor of two less-senior Hispanic officers” (id. ¶ 117).

Plaintiff’s claims regarding his suspension, disciplinary hearings, termination attempts, and

denials of accommodation fail because he does not allege facts to “plausibly give rise to an

inference of unlawful [race] discrimination” with respect to those allegations. See Vega, 801 F.3d

at 87 (emphasis removed). The Amended Complaint offers only conclusory assertions regarding

Defendant’s allegedly racially discriminatory motivation. (See Am. Compl., Dkt. 16, ¶ 102

(“[T]he disciplinary charges came as a result of anti-black animus”); id. ¶ 43 (“Plaintiff []

experienced and perceived his work environment as permeated with discriminatory animus”); id.

¶ 44 (Defendant “exhibit[ed] discriminatory animus toward[] Plaintiff due to his race”); id. ¶ 57

(Plaintiff’s supervisors “targeted Plaintiff for negative treatment based on Plaintiff’s race”); id. ¶

118 (“Defendant denied Plaintiff’s request for accommodation to use a chair at his post due to the

anti-Black animus exhibited towards Plaintiff by his superiors”); id. ¶ 119 (“Defendant denied

Plaintiff’s request for accommodation to use the bathroom due to [] anti-Black animus”).) In

Plaintiff’s response to Defendant’s motion to dismiss, he merely reasserts that his supervisors

“den[ied] him an accommodation for his disability on the basis of race” and “suspend[ed] Plaintiff

in a humiliating and embarrassing way due to [his] race.” (Pl.’s Resp., Dkt. 22, at ECF 3.)

But Plaintiff does not allege any facts to support the inference that Defendant’s actions

relating to his suspension, disciplinary hearing, termination attempts, and denials of

accommodation stemmed from race-based discrimination. He simply concludes that his

mistreatment by Hispanic supervisors was racially discriminatory because he is Black. “That type

of reasoning . . . is more than a legal conclusion which this Court is not required to credit: it is a

logically-flawed statement.” Forde v. Empire State Coll., No. 10-CV-9446 (CM) (THK), 2011

WL 4376499, at *3 (S.D.N.Y. Sept. 19, 2011). Because Plaintiff’s “[n]aked assertions of

discrimination” lack “any specific factual allegation of a causal link between [Defendant’s]

conduct and [Plaintiff’s] protected characteristic,” they “are too conclusory to withstand a motion

to dismiss.” See Amaya, 295 F. Supp. 3d at 220 (quotations and alterations omitted); accord

Rivera-Powell, 470 F.3d at 470.

At most, Plaintiff alleges with respect to the denial of vacation leave, that “[Maldonado

and Marrero], both of whom are Hispanic, denied [his] request for vacation in favor of two less-

senior officers” who are Hispanic. (Pl.’s Resp., Dkt.22, at ECF 2; see also Am. Compl., Dkt. 16,

¶ 117); see Littlejohn, 795 F.3d at 312 (explaining that an inference of discrimination can arise

from circumstances that include “the more favorable treatment of employees not in the protected

group”). However, even if this allegation could “plausibly give rise to an inference” of

discrimination, Vega, 801 F.3d at 87 (emphasis removed), as noted, the denial of vacation time

“does not generally rise to the level of an adverse employment action.” Chukwuka, 795 F. Supp.

2d at 261 (citation omitted). Here, the Amended Complaint does not provide “any indication that

there was an absolute prohibition against [P]laintiff taking any vacation time,” id. (quotations

omitted), and the Court finds that the denial of a single vacation request simply does not constitute

an adverse employment action. Nor are Plaintiff’s allegations about two Hispanic employees

being treated more favorably with respect to vacation time sufficient to support an inference of

discriminatory intent with respect to the previously discussed adverse employment actions.

Plaintiff therefore cannot sustain his Title VII discrimination claim, which must be

dismissed.5

5 And although, “[o]rdinarily, whether two employees are similarly situated presents a

question of fact,” Brown, 756 F.3d at 230 (quotations and alterations omitted), the Amended

Complaint suggests that Plaintiff and the other two employees were not comparable. As Plaintiff

II. Title VII Retaliation

Plaintiff alleges Defendant violated Title VII by retaliating against him for complaining

about race discrimination. Defendant moves to dismiss Plaintiff’s Title VII retaliation claims on

the basis that “Plaintiff fails to establish but-for causation” between his engagement in a protected

activity and an adverse employment action. (Def.’s Reply, Dkt. 21, at 6.)

A. Legal Standard

Title VII provides that “[i]t shall be an unlawful employment practice for an employer to

discriminate against any of his employees . . . because he has opposed any practice made an

unlawful employment practice by this subchapter . . . .” 42 U.S.C. § 2000e–3(a). “Thus, for a

retaliation claim to survive a motion for judgment on the pleadings or a motion to dismiss, the

plaintiff must plausibly allege that: (1) defendants discriminated—or took an adverse employment

action—against him, (2) ‘because’ he has opposed any unlawful employment practice.” Vega, 801

F.3d at 90 (quoting 42 U.S.C. § 2000e–3(a)). A “plaintiff may prevail on a claim for retaliation

even when the underlying conduct complained of was not in fact unlawful so long as she can

establish that she possessed a good faith, reasonable belief that the underlying challenged actions

of the employer violated the law.” Kelly v. Howard I. Shapiro & Assocs. Consulting Eng’rs, P.C.,

716 F.3d 10, 16 (2d Cir. 2013) (quotations and brackets omitted).

“[I]n the context of a Title VII retaliation claim, an adverse employment action is any action

that ‘could well dissuade a reasonable worker from making or supporting a charge of

admits, the first employee whose vacation request Defendant granted performed only “some of the

same duties as Plaintiff.” (Am. Compl., Dkt. 16, ¶ 50.) And although the second employee, Maxil,

received vacation time after the January 19, 2019 deadline to submit vacation requests, Plaintiff

does not allege Maldonado was on vacation during that time, which is the reason Marrero told

Plaintiff his request was denied (id. ¶ 47). See Sosa, 368 F. Supp. 3d at 499 (“Plaintiff must do

more than make conclusory legal allegations that she is substantially similar to her colleagues in

order to adequately plead this claim.”).

discrimination.’” Vega, 801 F.3d at 90 (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548

U.S. 53, 57 (2006)). “This definition covers a broader range of conduct than does the adverse-

action standard for claims of discrimination under Title VII,” because “the antiretaliation

provision, unlike the substantive discrimination provision, is not limited to discriminatory actions

that affect the terms and conditions of employment.” Id. (brackets omitted) (quoting Burlington,

548 U.S. at 64).

“As for causation, a plaintiff must plausibly plead a connection between the act and his

engagement in protected activity.” Id. (citing 42 U.S.C. § 2000e–3(a)). “This requires proof that

the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or

actions of the employer.” Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013).

“Unlike Title VII discrimination claims, . . . [i]t is not enough that retaliation was a ‘substantial’

or ‘motivating’ factor in the employer’s decision.” Vega, 801 F.3d at 90–91 (citation omitted).

“‘But-for’ causation does not, however, require proof that retaliation was the only cause of the

employer’s action, but only that the adverse action would not have occurred in the absence of the

retaliatory motive.” Id. at 91 (quotations and brackets omitted).

“A retaliatory purpose can be shown indirectly by timing: protected activity followed

closely in time by adverse employment action.” Id. at 90 (citations omitted). “Close temporal

proximity between the plaintiff’s protected action and the employer’s adverse employment action

may in itself be sufficient to establish the requisite causal connection between a protected activity

and retaliatory action.” Kaytor v. Elec. Boat Corp., 609 F.3d 537, 552 (2d Cir. 2010). “Though

[the Second Circuit] has not drawn a bright line defining, for the purposes of a prima facie case,

the outer limits beyond which a temporal relationship is too attenuated to establish causation, [it

has] previously held that five months is not too long to find the causal relationship.” Gorzynski v.

JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010).

“[A]n inference of causation is defeated (1) if the allegedly retaliatory [action] took place

at a temporal remove from the protected activity; or (2) if there was an intervening causal event

that occurred between the protected activity and the allegedly retaliatory [action].” Yarde v. Good

Samaritan Hosp., 360 F. Supp. 2d 552, 562 (S.D.N.Y. 2005). Thus, “[a]n intervening event

between the protected activity and the adverse employment action may defeat the inference of

causation where temporal proximity might otherwise suffice to raise the inference.” Joseph v.

Marco Polo Network, Inc., No. 09-CV-1597 (DLC), 2010 WL 4513298, at *18 (S.D.N.Y. Nov.

10, 2010); see also Lampros v. Banco do Brasil, S.A., No. 10-CV-9576 (DLC), 2012 WL 6021091,

at *11 (S.D.N.Y. Dec. 4, 2012) (noting that “the undisputed existence of a material intervening

event” may “severely diminish[] any inference that may be suggested by [a] temporal proximity”),

aff’d, 538 F. App’x 113 (2d Cir. 2013).

B. Plaintiff Adequately Pleads Title VII Retaliation

Plaintiff alleges that “on January 19, 2019, [he] openly verbally complained about

discriminatory conduct that he had been experiencing, i.e. that [] Maldonado and [] Marrero denied

his vacation requests in favor of other Hispanic officers because of [his] race . . . .” (Am. Compl.,

Dkt. 16, ¶ 79.) Plaintiff then “submitted a written statement to [Defendant’s Director of Public

Safety] about the harassment, discrimination, and retaliation.” (Id. ¶ 80.)

On January 30, 2019, Plaintiff called the HR Director and requested a bathroom break

because he was “going to soil [him]self.” (Id. ¶ 89.) Defendant did not grant the request, and

Plaintiff soiled himself at his post. (Id. ¶ 91.) “Plaintiff called dispatch and informed the dispatcher

that . . . he had soiled himself.” (Id. ¶ 92.) After lunch, Maldonado called Plaintiff into “the

office,” where Maldonado and the HR Director gave Plaintiff a letter stating that he was suspended

30 days pending investigation and was “subject to termination.” (Id. ¶¶ 94–96.)

“On or about March 10, 2019,” Defendant “claim[ed] [Plaintiff] exposed himself and

urinat[ed] at his post.” (Id. ¶ 100.) “Defendant subjected Plaintiff to a . . . disciplinary hearing

before an independent arbitrator” (id. ¶ 104), after which “Plaintiff was permitted to return to

work” when the charges were “unsubstantiated” (id. ¶ 105).

Defendant does not dispute that the complaint was a “protected activity,” see Littlejohn,

795 F.3d at 316,6 or that it subsequently “took an adverse employment action[] against [Plaintiff]”

under the standard applicable to retaliation claims, see Vega, 801 F.3d at 90. Further, the brief

temporal proximity between Plaintiff’s complaint about race-based discrimination on January 19,

2019 and his suspension on January 30, 2019, is, at the pleading stage, “sufficient to establish the

requisite causal connection.” See Kaytor, 609 F.3d at 552.

Defendant relies on Mauze v. CBS Corp., No. 15-CV-4905 (RJD) (SLT), 2019 WL

8137641, at *3 (E.D.N.Y. Jan. 23, 2019), and Fraser v. Fiduciary Tr. Co. Int’l, No. 04-CV-6958

(PAC), 2009 WL 2601389, at *6 (S.D.N.Y. Aug. 25, 2009), aff’d, 396 F. App’x 734 (2d Cir. 2010),

to argue that Plaintiff “ignores the fact that [the adverse actions] were taken on the same day he

soiled himself at his post,” and that “[t]his intervening event”—Plaintiff soiling himself—“defeats

any inference of causation.” (Def.’s Reply, Dkt. 21, at 6 (emphasis removed).) As noted,

Defendant is right that “the undisputed existence of a material intervening event” may “severely

6 That the denial of vacation was not unlawful discrimination under Title VII does not

prevent Plaintiff’s complaint about that event from being protected activity, because, as noted, a

“plaintiff may prevail on a claim for retaliation even when the underlying conduct complained of

was not in fact unlawful so long as she can establish that she possessed a good faith, reasonable

belief that the underlying challenged actions of the employer violated the law.” Kelly, 716 F.3d at

16 (quotations and brackets omitted).

diminish[] any inference that may be suggested by [a] temporal proximity.” Lampros, 2012 WL

6021091, at *11. In Mauze, for example, the court granted summary judgment to the defendant

on a retaliation claim because the evidence showed that the plaintiff “fail[ed] to communicate with

her colleagues and to obey direct orders from her supervisor.” 2019 WL 8137641, at *3. It

explained that, “on th[e] record, a reasonable fact-finder could only conclude that [the plaintiff]

was terminated due to her unprofessional and disruptive behavior which impeded her colleagues’

abilities to complete urgent tasks during one of the busiest weeks of the year, not because she filed

an EEOC complaint.” Id. at *4. Likewise, in Fraser, the court granted summary judgment after

determining that although “[t]emporal proximity between the protected activity and the adverse

action is a significant factor in considering a circumstantial showing of causation,” a one-month

proximity was insufficient given the evidence that the defendant fired the plaintiff only after an

investigation revealed “that he was attempting to establish an unauthorized hedge fund and market

it to [the defendant’s] clients.” 2009 WL 2601389, at *6.

Here, however, Plaintiff exposing, and urinating on, himself at his post—the alleged

ground for his 30-day suspension—is not an “undisputed . . . material intervening event.”

Lampros, 2012 WL 6021091, at *11. Unlike in Mauze and Fraser, which were decided on

summary judgment, the Court here must accept the allegations in the Amended Complaint as true.

While Plaintiff alleges that he soiled himself, he does not admit to exposing himself, and the Court

cannot find at this stage that “a reasonable fact-finder could only conclude” that Plaintiff’s soiling

himself was the reason for his suspension, see Mauze, 2019 WL 8137641, at *4 (emphasis added),

especially without any allegation that, for example, Defendant had a policy prohibiting such

accidental behavior.7 Even if Plaintiff’s soiling himself is one conceivable explanation for his

termination, that does not foreclose the plausibility of his Title VII retaliation claim.

Further, Plaintiff argues that his suspension was not the only way in which Defendant

retaliated against him, and that even Defendant’s refusal to grant him a bathroom break (causing

him to soil himself) constituted an adverse employment action taken in retaliation for Plaintiff’s

engagement in protected activity. This act, even if insufficient to constitute an adverse

employment action for a Title VII discrimination claim, could be sufficient for purposes of a Title

VII retaliation claim. See Vega, 801 F.3d at 90 (explaining that the definition of “adverse

employment action” in the context of Title VII retaliation claims “covers a broader range of

conduct than does the adverse-action standard for claims of discrimination under Title VII,”

because “the antiretaliation provision, unlike the substantive discrimination provision, is not

limited to discriminatory actions that affect the terms and conditions of employment.” (brackets

omitted) (quoting Burlington, 548 U.S. at 64)). At a minimum, Defendant cannot justify an

adverse employment action (the suspension) by identifying an intervening event (Plaintiff soiling

himself) that Plaintiff alleges was caused by Defendant and stemmed from retaliation (denying

Plaintiff a needed bathroom break).

Plaintiff therefore sufficiently alleges a Title VII retaliation claim, and that claim will

proceed.

III. Rehabilitation Act Discrimination

Plaintiff alleges Defendant discriminated against him based on a disability in violation of

the Rehabilitation Act. Defendant moves to dismiss Plaintiff’s Rehabilitation Act claim on the

7 Although months later Defendant charged Plaintiff with exposing himself and urinating

at his post, (Am. Compl., Dkt. 16, ¶ 100), there is no indication that Defendant believed Plaintiff

had done so when it suspended him.

bases that the Amended Complaint does not allege that Plaintiff is disabled under the Act, or that

he suffered an adverse employment action. (Def.’s Mot., Dkt. 17, at 2–3.)

A. Legal Standard

Under the Rehabilitation Act, “[n]o otherwise qualified individual with a disability . . . ,

shall, solely by reason of her or his disability, be excluded from the participation in, be denied the

benefits of, or be subjected to discrimination under any program or activity receiving Federal

financial assistance . . . .” 29 U.S.C. § 794(a).8 “A plaintiff may base her [Rehabilitation Act]

discrimination claim on one of three theories of liability: disparate treatment, disparate impact, or

failure to make a reasonable accommodation.” Davis v. Shah, 821 F.3d 231, 260 (2d Cir. 2016);

accord Kleyman v. SUNY Downstate Med. Ctr., No. 18-CV-3137 (PKC) (ST), 2020 WL 5645218,

at *12 (E.D.N.Y. Sept. 21, 2020) (“[F]ailure to accommodate may . . . be an element of an adverse-

employment-action-based discrimination claim in addition to forming an independent cause of

action.”).

“To establish a prima facie case of discriminatory termination in violation of the

Rehabilitation Act” under a disparate treatment theory, “a plaintiff must show (1) that the plaintiff

is handicapped within the meaning of the Act; (2) that the plaintiff is otherwise qualified to perform

the job; (3) that the plaintiff was discharged because of his or her handicap; and (4) that the

employer is a recipient of federal financial assistance.” Kinsella v. Rumsfeld, 320 F.3d 309, 314

(2d Cir. 2003). “To establish a prima facie case of discrimination based on an employer’s failure

to accommodate a disability, . . . a plaintiff must demonstrate that” (1) “the plaintiff is a person

8 Where, as here, “the subtle distinctions between the [Rehabilitation Act and Americans

with Disabilities Act] are not implicated,” courts in this Circuit “treat claims under the two statutes

identically.” Wright v. New York State Dep’t of Corr., 831 F.3d 64, 72 (2d Cir. 2016) (quotations

omitted).

with a disability under the meaning of the statute in question;” (2) “an employer covered by the

statute had notice of his disability;” (3) “with reasonable accommodation, plaintiff could perform

the essential functions of the job at issue;” and (4) “the employer has refused to make such

accommodations.” Natofsky v. City of New York, 921 F.3d 337, 352 (2d Cir. 2019) (quotations

and brackets omitted), cert. denied, 140 S. Ct. 2668 (2020). “In addition, a plaintiff must show

the connections between (1) the failure to accommodate a disability, (2) the performance

deficiencies, and (3) the adverse employment action.” Id. (quotations omitted) (emphasis in

original).

1. Disability

A person has a qualifying disability if he or she has (1) “a physical or mental impairment

that substantially limits one or more major life activities”; (2) “a record of such an impairment”;

or (3) is “regarded as having such an impairment.”9 42 U.S.C. § 12102(1); see also 29 U.S.C. §

705(20)(B). “Major life activities include ‘caring for one’s self, performing manual tasks, walking,

seeing, hearing, speaking, breathing, learning, and working.’” Veldran v. Dejoy, 839 F. App’x

577, 579 (2d Cir. 2020) (summary order) (quoting 45 C.F.R. § 84.3(j)(2)(ii)). “An impairment

need not prevent, or significantly or severely restrict, the individual from performing a major life

activity in order to be considered substantially limiting,” but “not every impairment will constitute

a disability.” Id. (quoting 29 C.F.R. § 1630.2(j)(ii)).

“Factors to consider in determining whether a major life activity is substantially limited

include: the nature and severity of the impairment; its duration or expected duration; and the

9 “Alleging the existence of a medical condition alone, even a serious one, is insufficient

to establish a disability within the meaning of the ADA without alleging that the condition

substantially limits a major life activity.” Eisenberg v. County of Nassau, No. 18-CV-1742 (JMA)

(SIL), 2019 WL 4247283, at *3 (E.D.N.Y. Aug. 30, 2019) (quotations and brackets omitted).

existence of any actual or expected permanent or long term impact.” Capobianco v. City of New

York, 422 F.3d 47, 57 (2d Cir. 2005) (citing 29 C.F.R. § 1630.2(j)(2)); see also St. Amour v.

Lawrence & Mem’l Corp., No. 09-CV-01055 (JAM), 2016 WL 4744120, at *5 (D. Conn. Sept.

12, 2016) (“[T]he permanent or long term impact of or resulting from the impairment is a factor

that informs whether that impairment substantially limits a major life activity, but a plaintiff need

not have a permanent disability (or suffer permanent injuries from that disability) to be entitled to

the protections of the ADA.”10 (quotations omitted)). Although “the effect [of an injury] on a

plaintiff’s ability to walk must be fairly significant before he or she will be determined disabled,”

Potenza v. City of New York, 95 F. App’x 390, 391 (2d Cir. 2004) (summary order), the inability

to stand for extended periods can be a substantially limiting impairment in some circumstances.11

10 “The Rehabilitation Act takes its definition of ‘disability’ from the Americans With

Disabilities Act[.]” Mazzeo v. Mnuchin, 751 F. App’x 13, 15 (2d Cir. 2018) (summary order).

11 Compare, e.g., Lyons v. Legal Aid Soc’y, 68 F.3d 1512, 1513 (2d Cir. 1995) (concluding

that the plaintiff was disabled even though she “performed her job duties successfully,” because

she “[wore] a brace on her left knee[,] she [could not] stand for extended periods, [] she [could

not] climb or descend stairs without difficulty[, and] [h]er condition severely limit[ed] her ability

to walk long distances either at one time or during the course of a day” (quotations omitted));

Urena v. Swiss Post Sols., Inc., No. 16-CV-1998 (LGS), 2016 WL 5173389, at *5 (S.D.N.Y. Sept.

21, 2016) (declining to dismiss a complaint where the plaintiff alleged that she was instructed “that

upon returning to work [from an invasive surgery], she could not stand or sit for prolonged periods,

or lift heavy objects”); Picinich v. United Parcel Serv., 321 F. Supp. 2d 485, 502 (N.D.N.Y. 2004)

(concluding that the plaintiff “established as a matter of law that at all relevant times he was a

disabled individual” when a doctor explained that the plaintiff was “unable to stand, sit, or walk

for, at most, 30 minutes at a time”), with Rosa v. Brink’s Inc., 103 F. Supp. 2d 287, 290 (S.D.N.Y.

2000) (finding that the plaintiff was not disabled despite her inability to clean her house properly;

walk, sit, stand for long periods without some undefined pain; or engage in sports such as biking,

scuba diving, camping, hiking, and riding horses); Zuppardo v. Suffolk Cnty. Vanderbilt Museum,

19 F. Supp. 2d 52, 56 (E.D.N.Y. 1998) (finding that the plaintiff was not disabled in part because

he “testified in his deposition that he [was] able to care for himself, walk some distances, navigate

stairs, perform his non-sedentary work duties, and even climb” and was “only sporadically

symptomatic[,] and [] the pain he occasionally suffer[ed] from when walking [was] controllable

with medication”), aff’d, 173 F.3d 848 (2d Cir. 1999); Kelly v. Drexel Univ., 94 F.3d 102, 106–09

(3d Cir. 1996) (finding that a plaintiff who did not require crutches or a cane, despite trouble

climbing stairs or walking any significant distances, was not substantially limited in his ability to

walk). Cf. Parada v. Banco Indus. De Venezuela, C.A., 753 F.3d 62, 70 (2d Cir. 2014) (“[T]he

2. Adverse Employment Action

“Discrimination claims brought under the [Rehabilitation Act] are analyzed in the same

way as such claims brought under . . . Title VII.” Sosa, 368 F. Supp. 3d at 523. The Rehabilitation

Act “requires a plaintiff alleging a claim of employment discrimination to prove that

discrimination was the but-for cause of any adverse employment action.” Natofsky, 921 F.3d at

348. “[A] plaintiff alleging disability discrimination under the [Rehabilitation Act] pursuant to a

theory that his employer took adverse employment action against him due to his disability may

demonstrate circumstances giving rise to an inference of discrimination through evidence of overt

discriminatory conduct or disparate treatment.” Murtha v. New York State Gaming Comm’n, No.

17-CV-10040 (NSR), 2019 WL 4450687, at *11 (S.D.N.Y. Sept. 17, 2019). “The causal

relationship between disability and decision need not be direct, in that causation may be established

if the disability caused conduct that, in turn, motivated the defendant to act . . . .” Sandler v.

Benden, No. 15-CV-1193 (SJF) (AKT), 2016 WL 9944017, at *18 (E.D.N.Y. Aug. 19, 2016)

(brackets omitted) (quoting Sedor v. Frank, 42 F.3d 741, 746 (2d Cir. 1994)), aff’d, 715 F. App’x

40 (2d Cir. 2017). “[H]owever, to satisfy the ‘solely’ part of the ‘solely by reason of’ element, the

disability must have been the only cause of the defendant’s conduct.” Id. (alterations omitted)

(quoting Sedor, 42 F.3d at 746). “As with other discrimination claims, a plaintiff need only give

plausible support to a minimal inference of discriminatory motivation at the pleading stage.” Sosa,

368 F. Supp. 3d at 523 (quotations omitted).

inability to sit even for a prolonged period of time may be a disability depending on the totality of

the circumstances . . . .”).

B. Plaintiff Adequately Pleads Rehabilitation Act Discrimination

For the reasons below, Plaintiff adequately pleads that he suffers from a disability and

Defendant took an adverse employment action against him as a result.

1. Plaintiff Adequately Alleges a Disability

Plaintiff alleges his ability to stand is substantially limited by a cyst in his left foot. (Am.

Compl., Dkt. 16, ¶ 12.) In 2019, a Workers Compensation Judge determined that Plaintiff had lost

20% of the use of his left foot. (Id. ¶ 25.) This “substantially limit[s] his ability to stand and

walk.” (Id. ¶ 62.) Plaintiff has received medical treatment for his foot condition, and doctors have

“not[ed] that he would sometimes need to sit to relieve some of the pain.” (Id. ¶ 64.) Plaintiff’s

duties as a Peace Officer “sometimes require standing for long periods of time,” however, as

evidenced by Maldonado’s refusal to let Plaintiff use a chair. (Id. ¶¶ 26, 76.)

As noted, “[m]ajor life activities include . . . walking . . . and working,” Veldran, 839

F. App’x at 579 (quotations omitted), and the inability to stand or sit for extended periods can be

a substantially limiting impairment, see, e.g., Lyons v. Legal Aid Soc., 68 F.3d 1512, 1513 (2d Cir.

1995); Urena v. Swiss Post Sols., Inc., No. 16-CV-1998 (LGS), 2016 WL 5173389, at *5

(S.D.N.Y. Sept. 21, 2016); Picinich v. United Parcel Serv., 321 F. Supp. 2d 485, 502 (N.D.N.Y.

2004). Although the Amended Complaint does not allege Plaintiff is unable to walk or work

altogether, “[a]n impairment need not prevent, or significantly or severely restrict, the individual

from performing a major life activity in order to be considered substantially limiting.” Veldran,

839 F. App’x at 579 (quoting 29 C.F.R. § 1630.2(j)(ii)).

As for the “duration or expected duration” of Plaintiff’s impairment, “and the existence of

any actual or expected permanent or long term impact,” see Capobianco, 422 F.3d at 57, the

Amended Complaint alleges that Plaintiff filed his Workers Compensation claim in 2015 (see Am.

Compl., Dkt. 16, ¶ 25) and continued to suffer from the same condition in 2019 (see id. ¶¶ 71–72).

Given Plaintiff’s limited burden at the pleading stage, these allegations plausibly suggest he

suffered from a long-term disability under the Rehabilitation Act.

Defendant relies on Lee v. Sony BMG Music Ent., Inc., 557 F. Supp. 2d 418, 425 (S.D.N.Y.

2008), to argue that “Plaintiff’s failure to identify his disability justifies the dismissal of his claim.”

(Def.’s Reply, Dkt. 21, at 3.) In Lee, the court dismissed the plaintiff’s disability discrimination

claim because the complaint “[did] not even [identify] what her disability [was],” but “merely

state[d] that she (1) suffered unspecified ‘back, neck, and psychological injuries’ following [an]

altercation with [her supervisor], and (2) and was ‘forced to go on leave’ because of the ‘emotional

stress’ of working in a hostile work environment.” 557 F. Supp. 2d at 425. The court explained

that the “[p]laintiff’s inability to work under a particular supervisor [did] not give rise to an

independent claim for disability discrimination.” Id.

Here, by contrast, Plaintiff’s Amended Complaint specifies his disability. Plaintiff claims

that his ability to stand was substantially limited by a cyst in his left foot (Am. Compl., Dkt. 16, ¶

12), and that a Workers Compensation Judge determined that he had lost 20% of the use of his left

foot (id. ¶ 25). This differs materially from the Lee plaintiff’s allegations of “unspecified ‘back,

neck, and psychological injuries’” and the “‘emotional stress’ of working in a hostile work

environment.” 557 F. Supp. 2d at 425.

Next, Defendant cites George v. TJX Companies, Inc., No. 08-CV-275 (ARR) (LB), 2009

WL 4718840, at *7 (E.D.N.Y. Dec. 9, 2009), to argue that Plaintiff’s successful performance of

his Peace Officer duties “constitutes ‘strong evidence’ that his ability to work is not substantially

limited.” (Def.’s Reply, Dkt. 21, at 3 (quoting George, 2009 WL 4718840, at *7).) In George,

the plaintiff “fractured his right humerus—his upper arm—and was therefore unable to work for

about two months,” after which “his treating physician examined his arm and prepared a note for

plaintiff’s employers stating that plaintiff could return to work (where he perform[ed] lifting and

other manual tasks) without any restrictions.” 2009 WL 4718840, at *7. The court granted

summary judgment because “there [was] no evidence in the record to support a finding that [the]

plaintiff’s fractured arm would not heal within six months,” making it “[a] transitory impairment”

rather than a disability. Id. at *8 (citing 42 U.S.C. § 12102(3)(B) (“A transitory impairment is an

impairment with an actual or expected duration of 6 months or less.”)).

George is inapposite. Unlike George, this case does not involve a summary judgment

record. Although the Amended Complaint alleges that Plaintiff has remained qualified to perform

his job “and remains a well-liked and respected employee” (Am. Compl., Dkt. 16, ¶¶ 27–29), it

also alleges that his duties sometimes require standing, and that the “extreme pain in his left foot

and leg” (id. ¶ 26) “substantially limit[s] his ability to stand and walk” (id. ¶ 62). Further, Plaintiff

asserts that his doctors have “not[ed] that he would sometimes need to sit to relieve some of the

pain.” (Id. ¶ 64.) Finally, as explained, Plaintiff’s condition persisted at least from 2015 to 2019.

(See id. ¶¶ 25, 71–72.) This case thus differs from George, where “there [was] no evidence in the

record to support a finding that [the] plaintiff’s fractured arm would not heal within six months.”

2009 WL 4718840, at *8.12

Defendant also relies on Rodriguez v. DeBuono, 44 F. Supp. 2d 601, 617 (S.D.N.Y.), rev’d

sub nom. Rodriguez v. City of New York, 197 F.3d 611 (2d Cir. 1999), where the court noted that

“[i]ntermittent, episodic impairments are not disabilities, the standard example being a broken

leg.” (Def.’s Reply, Dkt. 21, at 3 (quoting Rodriguez, 44 F. Supp. 2d at 617).) As noted, however,

12 And regardless of whether Plaintiff could work despite his injury and medication,

“[m]ajor life activities include . . . walking . . . [as well as] working.’” Veldran, 839 F. App’x at

579 (quoting 45 C.F.R. § 84.3(j)(2)(ii)); cf. Felix v. New York City Transit Auth., 324 F.3d 102,

106 (2d Cir. 2003) (“[A] plaintiff can seek accommodation at work even if the impairment only

qualifies as a disability because of a life activity other than working.”).

Plaintiff alleges a condition that chronically afflicted him for at least four years, and which resulted

in a Workers Compensation finding that he suffered from diminished ability to use his foot. As

the court noted in Rodriguez, even if “[a] temporary or non-chronic impairment, such as a broken

hip, may not be considered a ‘disability,’” an improperly-healed broken hip, “resulting in long-

term difficulty in walking,” might be a disability. Rodriguez, 44 F. Supp. 2d at 617. The Amended

Complaint does not suggest Plaintiff’s foot injury is temporary, and Plaintiff alleges it

“substantially limit[s] his ability to stand and walk.” (Am. Compl., Dkt. 16, ¶ 62.) Plaintiff thus

adequately alleges a disability.

2. Plaintiff Adequately Alleges an Adverse Employment Action

Plaintiff’s Amended Complaint also plausibly alleges that Defendant took an adverse

employment action against him because of his alleged disability. Plaintiff claims Defendant

suspended him for soiling himself at his post. Defendant agrees, pointing out that Plaintiff “was

suspended from work . . . on the same day he soiled himself at his post.” (Def.’s Reply, Dkt. 21,

at 6.)

Defendant nevertheless argues that, “[a]s with his Title VII discrimination claims, Plaintiff

does not allege an adverse employment action.” (Id. at 4.) As noted, however, suspensions can

be adverse employment actions. See, e.g., Lovejoy–Wilson, 263 F.3d at 223–24 (finding a

suspension without pay for one week to be an adverse employment action). At the pleading stage,

Plaintiff’s allegation that he was suspended for 30 days suffices.

Defendant also appears to argue—albeit implicitly—that firing Plaintiff for soiling himself

due to his incontinence does not amount to firing him for his alleged disability—i.e., his foot

condition. (See Def.’s Reply, Dkt. 21, at 2 (“[I]ncontinence does not constitute a disability”).) But

assuming this is Defendant’s contention, the Court disagrees. Plaintiff plausibly alleges that his

incontinence stemmed from the medications he took for his foot condition. (See Am. Compl., Dkt.

16, ¶ 84 (alleging that “Plaintiff’s medications caused him to have incontinence issues”).) Plaintiff

also alleges facts plausibly suggesting that Defendant knew of this connection. (See id. ¶¶ 60–61,

68 (alleging that Defendant participated in Plaintiff’s Workers Compensation proceedings and had

access to his medical records), ¶¶ 84–85 (alleging that Plaintiff “asked an HR representative named

Cassandra about the use of bathroom breaks due to his incontinence”).) The Amended Complaint

therefore asserts that Plaintiff’s “disability caused conduct that, in turn, motivated the defendant

to act.” Sandler, 2016 WL 9944017, at *18 (brackets omitted) (quoting Sedor, 42 F.3d at 746).

That is, Plaintiff suffered an adverse employment action “‘because of’ manifestations of [his]

disability.” See Doe v. Norwich Free Acad., No. 10-CV-1171 (SRU), 2012 WL 5383343, at *4

(D. Conn. Oct. 31, 2012). At the motion to dismiss stage, where Plaintiff “need only give plausible

support to a minimal inference of discriminatory motivation,” Sosa, 368 F. Supp. 3d at 523

(quotations omitted), his Rehabilitation Act discrimination claim is therefore adequately alleged.

See, e.g., Beaton v. Metro. Transportation Auth. New York City Transit, No. 15-CV-8056 (ER),

2016 WL 3387301, at *7 (S.D.N.Y. June 15, 2016) (finding “plausible that the [plaintiff’s]

termination was motivated by [his] disability,” despite his apparent sleeping on the job, because

he told his employer he “appeared to be sleeping on the job because of medication required by his

disability”).13

13 See also Scotto v. City of New York, No. 18-CV-04228 (LTS), 2019 WL 6701919, at *5

(S.D.N.Y. Dec. 9, 2019) (declining to dismiss disability discrimination claims because the

allegations were “sufficient to support an inference that [the defendant’s] actions in response to

the [plaintiff’s behavior at a] meeting were motivated by a perception that [plaintiff’s] mental

health condition rendered him unable to perform his job,” rather than from his “performance and

actions”); cf. McMillan v. City of New York, 711 F.3d 120, 129 (2d Cir. 2013) (“Here, it is

undisputed that McMillan was tardy because of his disability and that he was disciplined because

of his tardiness. In other words, McMillan was disciplined because of his disability.”).

Plaintiff thus adequately pleads Rehabilitation Act discrimination, and this claim will

proceed.14

IV. Rehabilitation Act Retaliation

Plaintiff alleges that Defendant violated the Rehabilitation Act by retaliating against him

for complaining about disability discrimination. Defendant moves to dismiss Plaintiff’s

Rehabilitation Act retaliation claim on the basis that the Amended Complaint does not allege that

he suffered an adverse employment action because of his complaints.

A. Legal Standard

“[T]he elements of a retaliation claim under [the Rehabilitation Act] are” (1) “a plaintiff

was engaged in protected activity;” (2) “the alleged retaliator knew that plaintiff was involved in

protected activity;” (3) “an adverse decision or course of action was taken against plaintiff;” and

(4) “a causal connection exists between the protected activity and the adverse action.” Natofsky,

921 F.3d at 353 (quotations and brackets omitted).15 “Requesting a reasonable accommodation is

a protected activity under the [Rehabilitation Act].” Morey v. Windsong Radiology Grp., P.C.,

794 F. App’x 30, 33 (2d Cir. 2019) (summary order) (citing Weixel v. Bd. of Educ., 287 F.3d 138,

149 (2d Cir. 2002)).

14 Although Plaintiff’s suspension for soiling himself due to his medication is sufficient

“minimal” evidence of discrimination at the motion to dismiss stage, see Littlejohn, 795 F.3d at

311, the Court notes that, at the summary judgment stage, a plaintiff’s “workplace misconduct is

a legitimate and nondiscriminatory reason for [an adverse employment action], even when such

misconduct is related to a disability,” McElwee v. County of Orange, 700 F.3d 635, 641 (2d Cir.

2012); see also Beaton, 2016 WL 3387301, at *8 (noting that although “the Complaint [met] the

minimal threshold that [the plaintiff] face[d] at th[e] [motion to dismiss] stage,” the defendant

“may very well have evidence of nondiscriminatory reasons for the termination—such as showing

that [the plaintiff] engaged in fireable misconduct” (footnotes omitted)).

15 “Claims for retaliation under the [Rehabilitation Act] are analyzed under the same

burden-shifting framework established for Title VII cases.” Widomski v. State Univ. of New York

(SUNY) at Orange, 748 F.3d 471, 476 (2d Cir. 2014) (quotations and brackets omitted).

B. Plaintiff Adequately Pleads Rehabilitation Act Retaliation

Plaintiff alleges that around January 17, 2019, Maldonado denied his request to use a chair

at his post. (Am. Compl., Dkt. 16, ¶¶ 71–76). “At roll call on January 19, 2019, Plaintiff openly

verbally complained” that Maldonado “had been harassing him by denying [his] request for

accommodation and removing the chair he needed at his post due to his disability.” (Id. ¶ 79.)

Plaintiff also submitted a “written statement” to Defendant’s Director of Public Safety. (Id. ¶ 80.)

On January 30, 2019, Plaintiff soiled himself at his post after Defendant denied his request

to use the bathroom. (Id. ¶¶ 81, 86–92.) Maldonado and the HR Director suspended Plaintiff for

30 days “pending investigation and subject to termination.” (Id. ¶ 96.) In March 2019, “Defendant

proffered . . . charges against Plaintiff, claiming he exposed himself and urinat[ed] at his post.”

(Id. ¶ 100.)

Defendant does not dispute that Plaintiff’s complaint on January 19, 2019 was a protected

activity. Nor does it contest that Plaintiff’s 30-day suspension was an adverse employment action.

Rather, it contends that “any temporal proximity between [Plaintiff’s] purported complaints and

his suspension and disciplinary charges is undercut by the allegation that these actions were taken

immediately after he soiled himself at his post,” and therefore that “Plaintiff fails to demonstrate

but-for causation.” (Def.’s Mot., Dkt. 17, at 3.)

The Court disagrees for the reasons specified above—namely, Plaintiff was suspended 11

days after complaining about Defendant’s failure to accommodate his disability, and Defendant

has not shown that “a reasonable fact-finder could only conclude” that Plaintiff’s soiling himself

was the reason for his suspension. See Mauze, 2019 WL 8137641, at *4 (emphasis added). And,

as previously discussed, a jury might also find that the denial of the bathroom break, which led to

the soiling incident, was retaliation for Plaintiff complaining about the denial of an accommodation

for his foot-related disability. That Defendant suspended Plaintiff or denied him a bathroom break

for complaining about the denial of his request to use a chair at work is at least plausible, even if

there is another possible reason. Plaintiff thus states a claim for Rehabilitation Act Retaliation.

V. Hostile Work Environment

Plaintiff alleges that Defendant subjected him to a hostile work environment under Title

VII and the Rehabilitation Act due to his race and disability. Defendant moves to dismiss on the

ground that Plaintiff does not allege that he suffered severe, pervasive, continuous, or concerted

harassment because of his race or disability.

A. Legal Standard

“Title VII prohibits an employer from discriminating in ‘compensation, terms, conditions,

or privileges of employment, because of an individual’s race, color, religion, sex or national

origin.’” Littlejohn, 795 F.3d at 320 (quoting 42 U.S.C. § 2000e–2(a)(1)) (brackets omitted). “The

phrase terms, conditions, or privileges of employment evinces a congressional intent to strike at

the entire spectrum of disparate treatment, which includes requiring people to work in a

discriminatorily hostile or abusive environment.” Id. (quotations and alterations omitted). The

Second Circuit has explained that “disabled Americans should be able to assert hostile work

environment claims under the ADA . . . [like] those protected by Title VII under that statute . . . .”

Fox v. Costco Wholesale Corp., 918 F.3d 65, 74 (2d Cir. 2019) (citation and quotations omitted).

Likewise, “[t]he standard for demonstrating a hostile work environment is the same under Title

VII [and] the Rehabilitation Act . . . .” Zabar v. New York City Dep’t of Educ., No. 18-CV-6657

(PGG), 2020 WL 2423450, at *6 n.7 (S.D.N.Y. May 12, 2020).

“To prevail on a hostile work environment claim,” a plaintiff “must show (1) that the

harassment was sufficiently severe or pervasive to alter the conditions of his employment and

create an abusive working environment, and (2) that a specific basis exists for imputing the

objectionable conduct to the employer.” Fox, 918 F.3d at 74 (quotations and brackets omitted).

Harassment is sufficiently severe or pervasive when “the workplace is permeated with

discriminatory intimidation, ridicule, and insult.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21

(1993) (quotations omitted). “Although the victim must subjectively perceive the conduct as

abusive, the misconduct shown also must be severe or pervasive enough to create an objectively

hostile or abusive work environment.” Fox, 918 F.3d at 74 (quotations omitted).

“As a general rule, incidents must be more than episodic; they must be sufficiently

continuous and concerted in order to be deemed pervasive.” Tolbert v. Smith, 790 F.3d 427, 439

(2d Cir. 2015) (quotations omitted). Still, “[e]ven an isolated act may be so serious that it requires

the conclusion that the terms and conditions of employment were altered.” Fox, 918 F.3d at 74.

“A plaintiff . . . therefore[] must demonstrate either that a single incident was extraordinarily

severe, or that a series of incidents were sufficiently continuous and concerted to have altered the

conditions of her working environment.” Id. (quotations omitted). “Courts look to the totality of

the circumstances to determine whether a plaintiff has met this burden, including proof of ‘the

frequency of the discriminatory conduct; its severity; whether it was physically threatening or

humiliating, or a mere offensive utterance; and whether it unreasonably interfered with the

plaintiff’s work performance.’” Id. (quoting Harris, 510 U.S. at 23) (brackets omitted).

“Legitimate reprimands by an employer are not abuse.” Id. at 75.

B. Plaintiff Adequately Pleads Hostile Work Environment

Plaintiff alleges Defendant subjected him to a hostile work environment by “denying him

vacation requests, subjecting him to harassment, intimidation, and bullying, denying requests for

accommodations, retaliating against him for making . . . complaints . . . , and subjecting him

to . . . suspensions and attempted termination.” (Am. Compl., Dkt. 16, ¶ 126.)

As discussed, the Amended Complaint contains at most one non-conclusory allegation of

disparate treatment based on race—that Defendant denied Plaintiff a vacation day—which did not

amount to an adverse employment action. This was “a mild, isolated incident” that “does not make

a work environment hostile.” Terry v. Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003) (quotations

omitted).16

Whether the Amended Complaint alleges events so “severe or pervasive” as to establish a

hostile working environment on the basis of Plaintiff’s alleged disability is a closer call. With

respect to his requests for disability accommodations, Plaintiff alleges only that, on one occasion,

Maldonado denied his request to use a chair (Am. Compl., Dkt. 16, ¶ 76), and that, on another,

Defendant denied his request to use the bathroom (id. ¶ 91). Nonetheless, given that these events

occurred close in time, were the acts of supervisors and not simply co-workers, and led to an

incident that the same supervisors used to suspend Plaintiff for 30 days, the Court finds that the

Amended Complaint “meets the threshold, though barely,” of alleging facts from which a

reasonable jury could find that Plaintiff “suffered severe and pervasive discriminatory conduct

while employed” at CUNY. See Bacchus v. New York City Dept. of Educ., 137 F. Supp. 3d 214,

241–42 (E.D.N.Y. 2015) (allowing a hostile work environment claim to proceed at the summary

judgment stage in part because Title VII and New York State Human Rights Law discrimination

claims were also going forward based on the same evidence); see also Thibodeaux v. Travco Ins.

Co., 13-CV-5599 (ERK) (VVP), 2014 WL 354656, at *2 (E.D.N.Y. Jan. 31, 2014) (“If one of a

16 As noted, the Amended Complaint contains many conclusory allegations of race

discrimination that the Court is “not required to credit,” Rothstein, 708 F.3d at 94. (See, e.g., Am.

Compl., Dkt. 16, ¶ 32 (alleging that “Plaintiff has had to report numerous instances of workplace

harassment, discrimination, hostile work environment and retaliation”), ¶ 44 (alleging that,

“Plaintiff has continued to suffer forms of illegal discrimination and retaliation . . . . [Defendant]

has continued to exhibit discriminatory animus towards Plaintiff due to his race”), ¶ 57 (asserting

that Maldonado and Marrero “targeted Plaintiff for negative treatment based on [his] race and his

history of complaints regarding harassment and discrimination”), ¶ 58 (claiming that Maldonado

and Marrero “treated Plaintiff less favorably in the terms and conditions of his employment as

compared to his similarly situated Hispanic co-workers . . . because of his race”).)

number of integrally related causes of action have to be tried, it makes little sense to grant a motion

to dismiss as one or more of them, as it may prove necessary to hold yet another trial in the event

that it is determined on appeal that the motion to dismiss was improperly granted.”)).17

Plaintiff’s hostile work environment claim will proceed.

CONCLUSION

Defendant’s motion to dismiss is granted in part and denied in part. Plaintiff’s Title VII

discrimination claim is dismissed. His Title VII retaliation claim, Rehabilitation Act

discrimination claim, Rehabilitation Act retaliation claim, and hostile work environment claim will

all proceed.

SO ORDERED.

/s/ Pamela K. Chen

Pamela K. Chen

United States District Judge

Dated: August 13, 2021

Brooklyn, New York

17 The Court notes that Plaintiff points to complaints he made between 2011 and 2015 about

alleged discrimination, harassment, and retaliation, but these allegations do not contain evidence

that such misconduct in fact occurred. See, e.g., Alfano v. Costello, 294 F.3d 365, 376 (2d Cir.

2002) (noting that “testimony that [the plaintiff’s employer treated her male peers more

favorably]—stated in conclusory terms without corroborating detail—[was] insufficient to support

a finding that [the employer] imposed a burden on her because she was a woman”). The Court

similarly declines to credit Plaintiff’s conclusory assertions of “harassment, intimidation, and

bullying” (Am. Compl., Dkt. 16, ¶ 126) insofar as he fails to connect those claims to any facts in

the Amended Complaint. See, e.g., Alfano, 294 F.3d at 376.